United States v. James Arnold

Filing

OPINION FILED - THE COURT: Bobby E. Shepherd, C. Arlen Beam and Michael J. Melloy. --AUTHORING JUDGE: Bobby E. Shepherd.-- (PUBLISHED) [4061798] [12-3082]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 12-3082
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
James Earl Arnold
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Davenport
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Submitted: May 17, 2013
Filed: August 5, 2013
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Before SHEPHERD, BEAM, and MELLOY, Circuit Judges.
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SHEPHERD, Circuit Judge.
James Earl Arnold was charged with conspiracy to manufacture and distribute
at least 50 grams of methamphetamine, in violation of 21 U.S.C. §§ 841(b)(1)(A) and
846, and possession of a sawed-off shotgun, in violation of 26 U.S.C. §§ 5841,
5845(a), 5861(d), and 5871. Arnold moved to suppress evidence from a November
2010 search that led to his arrest, and also moved for a hearing to challenge the

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truthfulness of factual statements in the application for the search warrant, pursuant
to Franks v. Delaware, 438 U.S. 154 (1978). The district court1 denied both motions.
Arnold now appeals the denial of his motion to suppress, and we affirm.
I.
In November 2008, Iowa narcotics officers began investigating Arnold and
several others regarding manufacturing and distributing methamphetamine. Over two
years, investigators collected various pieces of information from a range of sources
regarding Arnold’s role in making methamphetamine, including reports of the
manufacture and sale of methamphetamine from his Iowa home. In November 2010,
Officer Isaac Skinner of the Lee County Narcotics Task Force applied to the Iowa
state court for a search warrant for Arnold’s residence in Wever, Iowa. Officer
Skinner attached an affidavit to the search warrant application, detailing the
information gathered over the prior two years. The search warrant was approved, and
upon execution of the warrant, officers located evidence of methamphetamine
manufacturing as well as a shotgun with a sawed-off barrel. In March 2011, Arnold
was indicted by a federal grand jury for conspiracy to manufacture and distribute
drugs, as well as possession of a sawed-off shotgun.
Arnold moved to suppress the evidence obtained in the search and challenged
nine2 separate factual claims within the search warrant affidavit. Arnold argued the
affidavit contained misrepresentations or omissions that were material to the issuing

1

The Honorable Robert W. Pratt, United States District Judge for the Southern
District of Iowa.
2

On appeal, Arnold only challenges eight of the factual claims. The ninth claim
contained in his district court motion is not presented in this appeal, and we consider
it abandoned. See Etheridge v. United States, 241 F.3d 619, 622 (8th Cir. 2001)
(“Claims not argued in the briefs are deemed abandoned on appeal.”).
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court’s probable cause determination. Arnold also requested a Franks hearing so he
could question Officer Skinner regarding the affidavit. The district court found
several misrepresentations and omissions in the search warrant affidavit, but it
concluded none were made with intent to mislead or with reckless disregard of the
truth. Further, even if the existing misrepresentations and omissions were intentional
or reckless, the district court concluded none of the alleged misrepresentations or
omissions were necessary to or impacted the probable cause determination. The
district court denied Arnold’s motion for a Franks hearing, his motion to suppress,
and his subsequent motion to reconsider.
Following the denial of these motions, Arnold entered a conditional guilty plea,
reserving his right to appeal the denial of his motion to suppress. He was sentenced
to 120 months imprisonment on the drug count and 60 months on the firearm count,
to be served concurrently. This timely appeal followed.
II.
Arnold argues the district court erred by denying his motion to suppress.
Specifically, Arnold asserts the search warrant was obtained based on a defective
affidavit, and thus the district court erred by denying Arnold’s request for a Franks
hearing. Under Franks, a criminal defendant may request a hearing to challenge a
search warrant on the ground that the supporting affidavit contains factual
misrepresentations or omissions relevant to the probable cause determination. See
Franks, 438 U.S. at 155-56. However, in order to merit a Franks hearing, Arnold
must show both (1) that the affiant (Officer Skinner) “knowingly and intentionally”
made false statements or made them in “reckless disregard for the truth” and (2) if the
false information is excised (or the omitted information is included), the affidavit no
longer establishes probable cause. See id. at 155-56. “The requirement of a
substantial preliminary showing is not lightly met,” United States v. Mathison, 157
F.3d 541, 548 (8th Cir. 1998) (internal quotation omitted), and “[w]e review the
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denial of a Franks hearing for abuse of discretion,” United States v. Kattaria, 553 F.3d
1171, 1177 (8th Cir. 2009) (en banc) (per curiam).
On appeal, Arnold presents eight challenges to the affidavit, asserting that
Officer Skinner deliberately or recklessly: (1) misrepresented the substance of a
harrassment report about Arnold and omitted Arnold’s address and phone number,
(2) misrepresented the location of methamphetamine manufacturing contained in an
anonymous tip and omitted the nature of the tip, (3) misrepresented the role of
Arnold’s children in his alleged drug activities, (4) omitted factual information
relating to a co-conspirator’s methamphetamine-related purchases, (5) misrepresented
the timing of tracking the co-conspirator to Arnold’s residence, (6) misrepresented
that a confidential informant was “proven” and omitted that the informant was
“working off a charge,” (7) omitted information regarding Arnold’s daughter’s
purchase of lye (a methamphetamine manufacturing supply), and (8) omitted facts
regarding stolen property located at Arnold’s residence and misrepresented officers’
knowledge of the location of the stolen property. After carefully considering these
challenges, we find that the district court did not abuse its discretion when it denied
Arnold’s request for a Franks hearing.
First, we agree with the district court that many of Arnold’s challenges
highlight, at most, minor discrepancies or omissions—such as omitting that an
anonymous tip was received by fax—that do not establish deliberate or reckless
falsehood. See United States v. Coleman, 349 F.3d 1077, 1084 (8th Cir. 2003) (“A
‘minor discrepancy’ in the wording of an officer’s statement is not sufficient under
Franks to establish that the officer acted deliberately or recklessly in making the
statement.”); see also Technical Ordnance, Inc. v. United States, 244 F.3d 641, 649
(8th Cir. 2001) (“A law enforcement official is not required to include everything he
knows about a subject in his affidavit, whether it is material to a finding of probable
cause or not.”). Second, even for those few instances where the district court agreed
with Arnold that the affidavit contained a misrepresentation—such as conveying the
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false impression that a co-conspirator was tracked directly to Arnold’s house after a
methamphetamine-related purchase, when in fact the tracking occurred a month
later—Arnold has provided no evidence suggesting the misrepresentations were
deliberate or reckless. See Kattaria, 553 F.3d at 1177 (“Mere allegations of deliberate
or reckless falsehoods are insufficient.”). Third, we disagree with Arnold’s argument,
based on United States v. Medina-Reyes, 877 F. Supp. 468 (S.D. Iowa 1995), that a
misrepresentation occurred when the affidavit omitted that the confidential informant
was “working off a charge.” Medina-Reyes, which is only persuasive authority, is
limited to the unusual and highly coercive arrangement present in that case. See id.
at 475 (describing “remarkable” agreement that called for informant to make a
prosecutable case against two specific individuals within a specified time period in
order to obtain prosecutor’s recommendation of suspended sentence and probation);
see also United States v. Williams, 477 F.3d 554, 558-59 (8th Cir. 2007) (holding that
affidavits are not per se misleading due to omission of fact that informant was paid
or avoided prosecution, and distinguishing narrow facts of Medina-Reyes). Arnold
does not allege the confidential informant in this case had the sort of unusual
agreement present in Medina-Reyes.
And finally, even if we were to assume the challenged affidavit contained
deliberate or reckless falsehoods, Arnold’s argument for a Franks hearing would still
fail because the affidavit established probable cause even absent any
misrepresentations and including the omitted information. See United States v.
Augustine, 663 F.3d 367, 372 (8th Cir. 2011) (“For probable cause to be shown, the
warrant application and affidavit must describe circumstances showing that, based on
practical experience and common sense, there is a fair probability that contraband or
similar evidence will be found in the targeted place.” (quotation omitted)). Even
giving Arnold’s objections their most liberal reading, there was untainted information
in the affidavit detailing an array of drug-related activities linked to Arnold. Between
November 2008 and July 2009, officers received two reports from family members
and one anonymous tip of methamphetamine use and manufacturing at Arnold’s
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home. A family member also reported in July 2009 that Arnold was selling or
providing drugs to his children. In July 2009, officers received reports that two
individuals, driving a particular vehicle, purchased methamphetamine-related
products three times a week for several weeks. Later, in August 2009, the same
vehicle was tracked by officers to Arnold’s house. In May 2010, a confidential
informant reported trading pseudoephedrine, a methamphetamine precursor, for
methamphetamine at the Arnold residence. The transaction was handled by Arnold’s
daughter. And in November 2011, officers received a report that an individual
matching the description of Arnold’s daughter purchased lye, a product used to
manufacture methamphetamine, at an Iowa store. Thus, even ignoring any
misrepresentations and correcting any omitted material, we conclude that the
affidavit’s remaining contents were sufficient to establish probable cause for a search
warrant of Arnold’s home.
In sum, Arnold only manages to identify a few colorable misrepresentations
and omissions in the affidavit, none of which were intentional or reckless and none
of which were necessary to the probable cause determination. Thus, the district court
did not err in denying Arnold’s request for a Franks hearing.3

3

Arnold also argues the district court improperly relied on an unsworn proffer
of testimony from Officer Skinner regarding the alleged discrepancies in the search
warrant affidavit. Arnold cites United States v. McMurtrey, 704 F.3d 502 (7th Cir.
2013), to argue that allowing the government, but not the defendant, to offer new
evidence to support the affidavit was improper. This argument is without merit. We
can find no instance where the district court relied on any information other than the
search warrant affidavit and Arnold’s own affidavit detailing the alleged
misrepresentations and omissions. And the district court itself explicitly stated that
it did not rely on the unsworn proffer. See Order Den. Def.’s Mot. for Recons. 5,
ECF. No. 63. This is not a case, such as in McMurtrey, where the government was
allowed to bolster the affidavit with new evidence while the defendant sat by, unable
to rebut or challenge new evidence. See McMurtrey, 704 F.3d at 508. Instead, the
district court simply relied upon the original affidavit and Arnold’s own arguments.
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III.
Accordingly, we affirm.
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